Monday, July 09, 2012

In
the wake of Mohammad Morsi’s assumption of the Egyptian presidency, Egyptian
politics suddenly became clear. It
was obvious the Muslim Brothers decisively took charge of Egyptian politics and
it was only a matter of time before they gained control over the Army. Except of course to the people to whom
it was equally obvious that the Supreme Council of the Armed Forces took
control and it’s only a matter of time until Morsi and the Muslim Brothers are
out of power and back on the streets. And the MB and SCAF have made a deal. Or perhaps not. But what the events of the last couple
of days show is that after a year and a half of tumultuous politics in Egypt
nothing is really settled.

The January 25 uprising brought
into the open profound social and economic cleavages and conflicts and the
elections since have brought into the open some equally profound conflicts
between political organizations.
What the so-called transitional period, and especially the events of the
last two months have brought into the open, are the open institutional
conflicts which have yet to be resolved.
These institutional conflicts range from conflicts between the different
branches of government to conflicts between state organizations and between
institutions of governance and those in civil society. Most of the discussion about Egyptian
politics for the last year and a half has been about only the last of those
conflicts which encompasses but is not limited to the struggle for power
between the Supreme Council of the Armed Forces and the Muslim Brothers.

Egypt
is, as the sociologist Hania Sholkamy pointed out several weeks ago, a country
of institutions. This is so
obviously true that its importance tends, as she argued, to escape most
observers. Unlike Libya where the
Qaddafi regime spent 40 years diminishing if not eliminating them or Syria
where they are largely subordinate to the leader, Egypt has distinct, active,
and in many cases surprisingly effective institutions. The Egyptian Army is one such institution
as commentators pointed out ad nauseam
in February 2011 to explain why the Egyptian Armed Forces were supposedly so
much friendlier to democratic transition than their Syrian or Yemeni
counterparts. The Egyptian
presidency is another such institution. It is easy to forget that one of the remarkable features of
Egyptian governance over the last 60 years was the institutionalization of
presidential authoritarianism which long outlasted its founder, Gamal Abdel
Nasser who died 40 years ago. The
Azhar is another much older institution as is the state university system, for all
its many flaws including enormous size, over-great centralization, and
declining quality.

There is a temptation, plausible if
resistible, to call the judiciary the crown jewel of Egyptian
institutions. Certainly the
Egyptian judiciary and especially its highest bodies (the SCC, the Supreme
Administrative Court and the Court of Cassation) have well trained personnel,
command significant respect, and play remarkably independent if occasionally
conflicting roles. The judiciary,
like the Azhar and the university system, have had moments of grandeur over the
last century and have on occasion been staffed by individuals of real, and even
universally acclaimed, brilliance as well as significant competence. They have also had moments of
profound mediocrity and personnel whose corrupt behavior, individual
idiosyncrasy, or simple subservience have been embarrassing and destructive.

The two primary contenders for
power at the moment, the military and the Muslim Brothers have each begun to
legitimate their authority by claiming to uphold the law rather than transform
it through revolutionary action.
SCAF, which seized power during the massive demonstrations of February
2011, has long claimed to be merely guiding Egypt toward a democratic
order. That its seizure of power
was unconstitutional, that it has written constitutional declarations at will,
and that it is a largely unconstrained power is a reality it prefers
to soften by claiming merely to protect legally constituted authority. The MB, a highly disciplined cadre
organization, whose leaders more than occasionally evince a devotion to
reforming society as the embodiment of the Egyptian conscience expressed
through devotion to shariah, have also preferred to deploy the language of
respect for law as well as order. For the MB, however, the source of law is, not surprisingly, popular sovereignty manifested in the electoral process that has brought them to the presidency and the legislature.

The
problem with thinking of Egyptian politics as a two-party game is that there
are more than two actors. In the
last 18 months, for example, the judiciary has become more institutionally more
prominent in politics and the courts and the legal system have increasingly
become areas within which and about which intense political conflict
occurs. It may be stretching a
point to say that the judiciary have emerged as the real contenders and perhaps
also as winners over the last 18 months. It is certainly
no overstatement to say that, for now, the MB, SCAF, and many politically
influential individuals and parties seek to clothe themselves in the garments
of legality.

The most recent conflict over
legality and the role of the courts began in mid-June when the Supreme
Constitutional Court decided that the rules governing the election of
individuals to the national parliament last winter violated the constitution. Individual candidates constituted
one-third of the parliament and the court had no evident problem with members
elected by proportional representation.
In response to the ruling SCAF, acting in its capacity as the country’s
executive authority, dissolved the parliament and took back for itself the
legislative power that it had ceded when the legislature took office. In the 1990s the Mubarak
government had dissolved parliament and held new elections in response to
similar SCC rulings. Many
jurists and attorneys had expected such a ruling from the moment the electoral law was written in 2011 (including the famous
whistle-blowing judge, Noha al-Zeiny, whose revelations about electoral fraud
in 2005 in Damanhour were instrumental in court rulings at the time) but the
rapidity with which the court reached its decision was a surprise. The Islamist majority in the parliament
and the courts have been on a collision course for months, notably over the
issue of judicial review.

Dissolving the parliament where the
MB held effectively a majority of the seats eliminated their institutional
political base in government. It
did not eliminate their membership nor their broader electoral base. The dissolution occurred just as the
second round of voting in the presidential election was held. In the first round, the FJP had seen a marked diminution of the electoral support that provided its earlier overwhelming parliamentary success. Morsi narrowly won the presidency
with a campaign that promised, in 100 days, to solve 64 of Egypt’s basic
problems with food, traffic, energy and security. The calendar is moving but none of the problems identified
on his “Morsi-meter” website have been addressed. Instead of addressing routine problems of governance, he has
chosen to confront SCAF, the SCC, and at least half the country over
presidential authority and the distribution of power across government
institutions.

The
judiciary and the executive are engaged at every level from the simplest to the
most complex. When the Freedom and
Justice party/MB candidate Muhammad Morsi narrowly won the presidency, Farouq
Sultan the SCC chief justice announced his victory. Sultan was a controversial appointment to the SCC because he
had spent much of his career in the military and state security courts. As head of the SCC he was also head of
the Presidential Election Commission.
He reached mandatory retirement last week and received an official
farewell from Morsi as president.
Because parliament had been dissolved, Morsi was required to take the
oath of office before Sultan and the SCC.
Morsi was extremely unwilling to take the oath before the court and at
one point, Justice Tahany El-Gebali, publicly branded refusal an act of
treason.

Morsi’s
powers as president were limited by a revised version of the Constitutional
Declaration issued June 18.
The limitations are real but Morsi retains significant authority as
president; not least of these is the power to revoke prior presidential decrees
as well as the power to appoint government ministers and presumably at some
point members of the SCC. He also
has the power to call parliament into session and dissolve it. It was a combination of these
authorities that Morsi invoked last week.
Acting as president he revoked the SCAF decree that had dissolved
parliament and acting in a different capacity as president he convened
parliament. Both of these acts are
within his authority and neither explicitly contravenes the SCC’s ruling on the
parliamentary election. When
performed together, however, the overall effect is a striking challenge to the
SCC, SCAF, and the rule of law.
And, as so often in the last 18 months, it is done explicitly when
Islamists and others have clashed, the Islamists have plausibly claimed to be
acting on behalf of the sovereign authority of the democratic majority.

Morsi’s decision to convoke the
parliament challenges the SCC for obvious reasons but the challenge to SCAF is
not merely the revocation of their prior edict. It also challenges their claim to have regained legislative
authority. And it implicitly
reverses any claim that the acts of the People’s Assembly and the Shoura
Council were invalid. The most
important of these acts was the choice of a constituent assembly to write a new
constitution.

That
Egypt is politically divided and has become more so over the last 18 months is
no secret. More than 75 percent of
Egyptians voted to approve the constitutional amendments in March 2011 which
led the Muslim Brothers and Salafi political activists to claim the majority of
the country was squarely behind them.
Since that referendum the Salafis have gained political clout at the
expense of the Muslim Brothers and most recently the presidential candidate,
Mohammad Morsi, they jointly backed in a run-off won barely more than 51
percent of the vote against a former air force general and old regime Prime
Minister.

There
have been attempts to diminish the perception that political conflict is
widespread by claiming that former general Ahmed Shafiq, had only limited
support. Mapping the electoral
outcome, however, shows a very clear geographical core of about a third of the
country, extending from Cairo north nearly to the Mediterranean coast, in which
Shafiq won consistent majorities.
Morsi’s narrow victory came from the area to the south of Cairo, and a
belt of provinces around the Shafiq core.
Looking at the map produced by Eric Schewe linked below it is very clear
that the vote for Shafiq was neither geographically nor socially narrow.

Besides
geography, this division of the country implies that the now-dissolved National
Democratic party, the governing party from its creation by President Anwar
Sadat in the 1970s until 2011, has survived the revolution. Whether its rebirth
is solely the result of its own efforts or has been aided by other forces, such
as the Wafd party, is hard to tell.
But the results do suggest that just as with the communist parties in
Eastern Europe (not to mention the Italian Christian Democrats, the Japanese
Liberal Democrats, and the Institutional Revolutionary Party in Mexico) a party
that linked patronage and governance for several generations will not go
quietly extinct. It may take a
year or it make take a decade but short of more extreme legal repression
against the members they will return to compete for power sooner or later. Thirty years of political repression
obviously did not obliterate the Wafd, the party that dominated Egyptian
politics from 1919 until 1952. A
shadow of pre-Nasser self, it was still the largest non-Islamist party in the
now-dissolved parliament.

For
the first time in 60 years therefore Egypt has open and persistent political conflict
reflected geographically as well as institutionally and socially. Whether future elections are
based on individual candidacies or proportional representation they will
continue to be based on local constituencies and will therefore reflect the
geographical distribution of political difference. I will return to this point at the end but its political
implications are apparent: politics
will be local.

In
modern states the legislature is the representative branch in name and in
practice. The legislature reflects
more closely than the executive or the judiciary the opinions, prejudices, and even
the appearance of the citizens at large.
Legislators rarely enter office with the extensive education or
socialization that characterizes the judiciary and they are invariably more
connected to the demands and needs of constituents than any president or prime
minister. The head of state may
represent the people in foreign affairs but the legislature embodies popular
sovereignty. The MB has relied on
the language of democracy, revolution, and popular sovereignty to buttress its claims to authority. In the process its supporters have claimed that the SCC is a collection of corrupt remnants of the old regime. There is a heavy irony in this because it was an SCC ruling in the 1980s that forced the Mubarak government to allow individual candidates to run which was one way for the MB to elect parliamentarians before 2011.

The 2011 constitutional referendum
and declaration endowed the legislature to be elected with one primary
task: choosing a constituent
assembly to write a new constitution.
The language conferring this task placed it simply and absolutely in the
authority of the legislature. Islamist legislators (in this case the
MB and the Salafi parties) held an absolute majority and nominated themselves
as a majority for the assembly.
The bulk of the non-Islamist members of the Assembly withdrew and there
were significant protests.
The assembly majority had deployed its absolute prerogative to dominate
the writing of a new constitution to the dissatisfaction of many other
political forces and institutions:
the Azhar, the Church, the secular liberals, and ultimately the Supreme
Council of the Armed Forces.

The military, of course, had the
power to intervene and set aside the constituent assembly and perhaps the
generals discussed the possibility.
They could not have relished reversing so obviously their promise to
return political authority to an elected government in a document they
themselves had written and for which they had gained national approval. Their earlier attempts to shape the
constitution in the socalled “Selmi Document” presented by former Deputy Prime
Minister Ali El-Selmi had already been formally rejected by the MB backed up by
massive demonstrations in Tahrir Square.
Egypt appeared to be in a classical political confrontation
characteristic of revolutionary dual power. The legislature and its majority in early 2012 had chosen to
use its political power to impose its own sovereign vision on the country;
others resisted. In France in 1789
or Russia in 1917 the outcome of a similar confrontation was resolved in the
streets by popular mobilization whereas in Chile in 1973 it was resolved by the
use of massive force.

In Egypt it was resolved in court.

In addition to the protests,
several suits had been filed challenging the composition of the constituent
assembly. On April 10 the
Supreme Administrative Court ruled that the constituent assembly had been
improperly chosen by the then-sitting parliament and ordered it suspended. This was a strange, if for many people
welcome, intrusion by the judiciary into the work of the legislative
branch. The Supreme
Administrative Court, modeled on the European system, differs from the Supreme
Constitutional Court. The SAC is
supposed to determine whether government officials abide by the laws that
define their authority.
Legislators are not usually considered government officials because they
are not appointed. The choice of
the constituent assembly was, in addition, a sovereign act of the legislature
and had been unconstrained by the constitution. It was therefore peculiar that the administrative courts
would intervene to overturn the one act the legislature had been elected to
perform and to use the argument that it had not followed the appropriate
procedure. Nevertheless, in issuing
that decision to SAC defused a possible crisis at least for a while that the
actors appeared unable to resolve on their own. The SAC has also issued its own
decisions including one in late June about whether the military police could
arrest citizens. The Minister of Justice
had decided they could; the SAC decided they could not.

The SCC has, in the latest
iteration of the constitution promulgated by SCAF a special role. In the event of conflict over any
provision of the constitution that troubles SCAF the SCC is empowered to
determine whether it should be adopted.
The SCC, in short, has now been given the role of “supra-constitutional”
authority about which there was so much conflict in the fall of 2011 and which
formed part of the debate over the Selmi document. Nathan Brown, a scholar at George Washington University has
written “Giving the constitutional court a binding veto over any constitutional
provision with only the vaguest guidance on the standards to use is simply a
constitutional obscenity.” In effect the SCC is now responsible for
writing the constitution although should the parliament return to session it
may contest this responsibility.

Constitutional obscenity or not,
the decision by SCAF to give the SCC veto power over an as yet unwritten
constitution reveals the degree to which there is as yet no clear victor in the
ongoing conflict over power, and especially the power to determine the
institutional framework of the Second Republic. The power of the judiciary is partly a function of the
strength of the conflicts they are called to adjudicate. In periods when the executive—whether
the British imperial authorities or the government under Nasser and later
Sadat—comfortably dominated politics writing a constitution was
straightforward. Even the highly
undemocratic and rapidly repudiated Sidqi constitution of 1930 that stripped
away universal male suffrage was written with more certainly than the one
presently under negotiation.
Where, as in Tunisia, the constituent assembly itself has legitimacy it
can also write a constitution without external interference.

Unfortunately no Egyptian Dickens
has yet come forward to describe the legal system in the detail with which Bleak House describes the British
Chancery Court. It is the SAC that
may ultimately be given the task of determining the consequences of the SCC’s
ruling on parliament. The ruling
itself will stand but how it is implemented may still be the subject of
litigation before the SAC. As I
write this SCAF has issued a vague statement subject to different
interpretations. SCAF continues to
present itself as the defender of the rule of law and that President Morsi has
positioned himself as a defender of popular sovereignty who has no intention of
interfering with the rule of law is telling.

In a country whose most recent election showed it to
be nearly divided in two, the two primary antagonists seem to be planning on
provoking an intemperate but also unsuccessful attack on the rule of law from the other. So far this has had the appearance of an elaborate nearly ritual performance whose rules may be clear to the protagonists but which are confusing to the rest of us. It is probably a mistake to confuse what looks like choreography for collusion. It is also, I think, a mistake to conflate the institutional and ideological conflicts between jurists and the judiciary on the one hand and parliamentarians and politicians on the other with corruption, intolerance, or moral turpitude. There are sufficient ethical shortcomings and lack of political vision all around, but there are also profound institutional conflicts between counter-majoritarian judiciaries and legislators who soundly believe they represent the best prejudices of society.

The electorate certainly and probably the larger population as well is both geographically divided and still uncertain of its political allegiances. A glance at Schewe's map referenced above suggests how sharp has been the turn against the MB in some areas even if the reasons for the turn remain obscure. The map also has an accidental but real resemblance to claims by SCAF and others earlier in the year that Egypt could be divided into four statelets. While that idea is absurd on its face, the existence of some very strong tendencies toward regional difference beyond the traditional division into north and south are likely to become more rather than less important.

Constitutional scholars and the
judiciary appear to be split over the whether Morsi can re-convene parliament
and whether he has now (as some claim) violated his oath of office to uphold
the constitution. The answer will
be neither legal nor intellectual but it may yet turn out to be judicial. Or it may not be. When the Chilean military moved against
President Salvador Allende in 1973, it was ostensibly to defend the rule of
law.